Leonid Golovko’s Open Lecture
Head of the Department of Criminal Procedure, Justice and Prosecutor's Supervision of the Law Faculty of the Lomonosov Moscow State University gave a talk about the models of the criminal process.
On the evening of 26 March, we received Leonid Golovko, the head of the Department of Criminal Procedure, Justice and Prosecutor’s Supervision of the Law Faculty of the Lomonosov Moscow State University. The speaker formulated his topic as “The Models of the Criminal Procedure: Opposition or Convergence?” The meeting was moderated by Kirill Molodyko, a leading research fellow of the HSE-Skolkovo Institute for Law and Development.
The first part of the talk focused on the relationship between the two key models of the criminal procedure, because, according to the speaker, it is still the case that “any textbook on the criminal procedure opens with a comparison of the continental and the Anglo-Saxon models.” Contrasting the inquisitorial and adversarial processes is the backbone of the criminal law theory. Leonid Golovko believes that in this area, there are still more questions than answers. The comparative legal perspective allows a systematic approach to the analysis of the criminal law theory in order to proceed to the analysis of individual institutions and their actualization.
Current developments cannot be understood without resort to history. One cannot escape this, the opposition of the different types of procedure follows from historical analysis, outside of which one cannot understand what was happening in real life. For example, the typical difficulties await a researcher studying the Anglo-American process, which is largely based on case law. What is discussed in the deliberation rooms is not always open to public, which is why course books are not always adequate sources for understanding the Anglo-American process. In this respect, Leonid Golovko dwelt in detail on the new findings recently made by British researchers who had obtained access to the records of the medieval English criminal court — findings which resulted in a revision of some of the tenets which had previously prevailed in science. Fluent in French, the speaker made a detailed comparison of the English and French criminal procedures from both historical and modern perspectives.
The comparative analysis of the criminal justice institutions was followed by an analysis of the development trends of the Russian procedure. In the 19th century, Russia adopted a variety of foreign criminal procedures. Russia’s criminal process developed until 1917 to then hit ideological boundaries, when a gap emerged between the technological reality and an attempt to construct a new communist criminal procedure.
Professor Golovko noted that, for all the shortcomings of jury trial in modern Russia, the Russian model is still the best and most advanced among the other CIS countries. At the same time, the recent introduction of jury trials in district courts faces a plethora of unavoidable organizational difficulties (such as the selection of jurors). It is yet unclear if they will be overcome or not.
Is it possible to combine the different models of procedure in one state? There are ideological challenges to this. The first one is the neoliberal doctrine prevalent in Europe. The boundaries between the private and the public are blurred, the market comes to the fore, everything is subjected to the logic of the market, including public law institutions, which leads to a re-thinking of competition between defence and prosecution. The criminal procedure now reflects the ideology of the market and results in economic failures — after all, a citizen cannot compete with the state.
Another important challenge is digitalization. To what extent can the form define the content? According to our guest, the main elements of the criminal procedure will retain their content. For example, what is important is whether a witness told the truth or not about the subject of interrogation, whether he could objectively perceive the facts, rather than whether his testimony was put on paper with a quill, with a pen, with a typewriter or in computer file.
The next challenge is globalization, an attempt by international organizations to influence national criminal procedures. A typical example is the requirement for national legislators to introduce criminal liability of legal entities. In this context, the participants discussed the following opinion of Professor Golovko, which he expressed in one of his recent articles: “When we try to understand global initiatives coming from international organizations (the UN, the European Union, the OECD, etc.), we should by no means underestimate the extra-institutional factors, one of which is the strong bureaucratization of their activities. If any serious analysis takes place, it is only at the solution development stage, and even then, it is difficult to talk about intellectual flexibility because when attempts are made to take into account the subtleties and the nuances (sociology, history, comparative legal differences, etc.), by definition, no common solution can be found for Mali, Mongolia, and the UK. So even at the solution development stage, things have to be simplified and schematized, which is one of the immanent signs of the global institution-building.
“However, while some discussion is still possible when a solution is being devised, it is completely ruled out when the global initiative is being implemented. Officials of an international organization are given an task that must be accomplished no matter what, otherwise the initiative will fail. The "flagged map" principle comes into play here, where a country is either flagged (the initiative is implemented) or not (the initiative is not implemented). No halftones are accepted, no attempts to oppose the conceptual and functional comparison, to prove that we do have mechanisms, but within a different concept. This is impossible for purely bureaucratic reasons: what flag should the official then stick and what should they write in the report? A report of an EU or OECD clerk cannot take the form of a comparative legal treatise, otherwise the basic management principles will be violated. Therefore, the official will smile, knowingly nod, but will then keep asking the national authorities again and again, when they are going to introduce criminal liability of legal entities into their Criminal Code, driving the national authorities mad, because they thought they had just made it clear that a similar institution exists here and there, is governed by this and that, and that otherwise the logic of the system would be violated, etc. In fact, during negotiations, a representative of an international organization does not act as an intellectual who can be persuaded, but as a bureaucrat who cannot be pursuaded of anything. Understanding the national institutional specifics is simply not part of his mandate — his task is different. Moreover, such understanding contradicts the logic of a global initiative as such, since it is not about optimizing national regulation (as national authorities sometimes naively believe), but about promoting the global initiative, which is not the same thing.”
The spoke to a traditionally packed house and answered numerous questions from the interested audience. According to registration data, PhD students of the HSE Faculty of Law were joined by teachers, researchers, undergraduate and graduate students from various departments of the Higher School of Economics, the Lomonosov Moscow State University, the Moscow State Institute of International Relations (MGIMO), Kutafin Moscow State Law University, the Russian School of Private Law, the Institute of Legislation and Comparative Law under the Government of the Russian Federation, the All-Russian State University of Justice, in-house and private lawyers. The speaker and the moderator personally greeted the honourable guest of the lecture, the head of the Department of Criminal Procedural Law of the Kutafin Moscow State Law University, professor Lydia Voskobitova.